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Judging Wisconsin Prosecutors

When should federal courts intervene in civil-rights cases?

A funny thing happened this week when a federal court heard an appeal of a preliminary injunction against the Wisconsin prosecutors targeting conservative allies of Governor
Scott Walker.
The judges in oral argument seemed to dislike the prosecutors' case on the merits, but they suggested they might kill the injunction on federalism grounds.

Now, that's a surprise right hook. A federal district judge imposed the PI to stop the secret probe that has shut down the First Amendment rights of the Wisconsin Club for Growth. But appellate Judges
Frank Easterbrook
and
Diane Wood
seemed skeptical that federal relief is needed because Wisconsin Judge
Gregory Peterson
is already supervising the probe.

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"Surely they have the power to say, 'This investigation has got to stop,'" said Judge Wood. Added Judge Easterbrook, a Reagan appointee: "You should be making the same arguments to Judge Peterson that you are making to us."

Such respect for state courts is admirable, and "federalism" is our middle name. But the appellate judges are underestimating the harm this probe is doing to the rights of those who've been targeted. Judge Peterson quashed the prosecution's subpoenas way back in February because there was no evidence of a crime, but Milwaukee Democratic District Attorney
John Chisholm
has appealed and the case is sitting, and sitting, and sitting at the Wisconsin Supreme Court.

Meanwhile, the targets sit in limbo, forced to spend money on lawyers to defend themselves rather than exercising their First Amendment right to advocate for causes. The Wisconsin Club for Growth's political fundraising has been shut down and it hasn't run a single ad in this election cycle. This is precisely why the Club and director
Eric O'Keefe
sought relief in federal court.

The breadth of this investigation, covering six legal proceedings, dawn raids and no apparent guardrails, is also a particular infringement on due process. As appeals judge
William Bauer
asked, even if this probe is closed, what's to stop prosecutors from opening another one? If a DA can get kitchen-sink subpoenas based on vague concerns about campaign-finance "coordination," regulators will have carte blanche to paw through the email of their political enemies.

On that point, veteran legal writer
Stuart Taylor
reported in Legal Newsline this week that "a longtime" subordinate to Mr. Chisholm says the prosecutor "may have had personal motivations for his investigation." Mr. Chisholm's wife, Colleen, is a teachers union shop steward who opposed Gov. Walker's 2011 labor reforms. Mr. Taylor reports that the former subordinate (who asked to remain anonymous) says Mr. Chisholm said in the subordinate's presence that "he felt that it was his personal duty to stop Walker from treating people like this." Mr. Chisholm's lawyer denied the allegations and called them "scurrilous."

Even if the appellate judges think state courts should have the first chance to stop due-process violations, federal courts must still ensure that it happens in a timely fashion. First Amendment rights delayed are rights denied. If the appellate judges overturn the injunction, they at least ought to make clear that undue delay by the state courts would open the door to rapid federal judicial intervention.